The Occupational Safety and Health Administration (OSHA) has made it clear that heat-related illnesses are a top priority, and the upcoming heat exposure standard will certainly affect construction companies.
The standard has been front and center for the Biden administration. The then-serving Assistant Secretary of Labor for Occupational Safety and Health announced in June 2021 that OSHA would have “very, very good, very thorough stakeholder engagement and involvement” while it develops the rule. . Additionally, the Permanent Assistant Secretary, in early March 2022, pointed out that the heat standard comes second only to the agency’s COVID-19 strategy, highlighting his concern that extreme heat events will affect minority workers and seniors. , as well as migrant workers, disproportionately.
On October 27, 2021, OSHA issued an Advance Notice of Proposed Rulemaking (ANPRM) for “Preventing Heat-Related Injuries and Illnesses in Outdoor and Indoor Workplaces” in the Federal Register. OSHA then extended the comment period for ANPRM to January 26, 2022, and information sought on certain topics, including the following:
- Occupational diseases, injuries and deaths due to hazardous heat, including their under-reporting and their magnitude in geographic regions or among various industries, occupations, tasks or businesses of different sizes
- Determinants of hazardous occupational heat exposure and heat-related illnesses in the workplace
- Inequalities in Exposure and Outcomes Between Workers of Color and Low Wages
- Structure of work and working arrangements affected by hazardous heat
- Existing efforts on heat illness prevention, including by OSHA, states, employers, or other industry associations
- Costs, economic impacts and benefits
- Impacts of climate change on hazardous heat exposure for outdoor and indoor work environments
In addition, OSHA has sought feedback on the following strategies to reduce heat-related occupational injuries and illnesses:
- Heat prevention plans and programs
- Engineering Controls, Administrative Controls, and Personal Protective Equipment (PPE)
- Physiological and exposure monitoring
- Plan and respond to heat-related emergencies
- Worker training and engagement
Currently, OSHA protects workers from extreme heat using the General Duty Clause, a “catch-all” provision of the Occupational Safety and Health Act (OHS Act) that requires employers to provide jobs and workplaces free from recognized hazards, including exposure to heat. However, the agency acknowledged that its use of the general duty clause faced significant legal challenges and the lack of “specific, authoritative exposure thresholds” made it difficult for OSHA to prove the existence of a recognized danger. In particular, the agency pointed to a case from 2019, AH Sturgill Roofing Co. v. Secretary of Labor, in which the Occupational Safety and Health Review Commission (OSHRC) set the bar high for the use of the general duty clause in cases involving exposure to heat and other conditions potentially hazardous environments. In 2020, an OSHRC judge followed Sturgill and overturned five heat hazard citations against the U.S. Postal Service, finding that OSHA could not rely on a guide from the National Weather Service to determine heat severity.
ANPRM noted potential gaps in existing standards. For example, OSHA’s sanitation standard does not specify the amount of potable water that must be available for employees and the PPE standard does not specifically identify hazardous heat as a hazard for which workers have need training or PPE.
The ANPRM makes several references to the construction industry. For example, it highlights the problem that heat poses to construction workers and indicates that workers in the construction of highways, streets and bridges have been among the most frequently hospitalized for heat-related problems since 2018. The ANPRM concludes that the construction industry had 13 times more heat risk – heat-related deaths than the average annual rate of heat-related deaths at work in all other industries.
ANPRM suggests that OSHA could attempt to address various working arrangements in the final heat standard, such as the use of casual workers (including non-US workers) and multi-employer worksites.
Currently, OSHA provides guidance on “Work in outdoor and indoor heat environmentsand suggests that employers:
- Provide workers with water, rest and shade.
- Allow new or returning workers to gradually increase their workload and take more frequent breaks as they acclimatize or develop a tolerance for working in the heat.
- Plan for emergencies and train workers in prevention.
- Monitor workers for signs of illness.
With construction being one of the few industries repeatedly referenced in the ANPRM and summer fast approaching, construction employers should keep an eye out for the final rule.